Opinion
CR07358072
12-03-2018
STATE of Connecticut v. Robert BUIE
UNPUBLISHED OPINION
OPINION
Jon M. Alander, Judge of the Superior Court
The defendant, who is self-represented, has moved for post-conviction DNA testing pursuant to General Statutes § 54-102kk. Specifically, the defendant requests that DNA testing be done on the victim’s thong underwear and that mitochondrial DNA testing be done on the swabs taken from the victim’s vagina, mouth and rectum. The defendant further asserts that (1) for several days, the defendant’s buccal swab was unaccounted for, allowing for possible contamination, and (2) the DNA testing method used in connection with his trial was unreliable. The state argues that the motion should be denied because, given the overwhelming evidence of the defendant’s guilt submitted at trial, there is no reasonable probability that the defendant would not have been prosecuted or convicted if exculpatory evidence had been obtained through the DNA testing sought by the defendant.
The defendant was convicted, following a jury trial, of two counts of aiding and abetting aggravated sexual assault in the first degree in violation of General Statutes §§ 53a-8 and 53a-70(a)(1), and one count each of attempt to commit aggravated sexual assault in the first degree in violation of General Statutes §§ 53a-49(a)(2) and 53a-70a(a)(1), conspiracy to commit aggravated sexual assault in the first degree in violation of General Statutes §§ 53a-48(a) and 53a-70a(a)(1), and burglary in the first degree in violation of General Statutes § 53a-101(a)(1).
The defendant subsequently appealed his convictions. That appeal was unsuccessful. State v. Buie, 312 Conn. 574 (2014). The defendant has also filed multiple habeas petitions, all of which have been denied. See Buie v. Warden, 2012 WL 7831271 (Conn.Super.Ct.) (September 28, 2012) (Cobb, J.) and Buie v. Warden, 2017 WL 2452160 (Conn.Super.Ct.) (May 11, 2017) (Oliver, J.).
Section 54-102kk(a) provides in relevant part that "any person who was convicted of a crime and sentenced to incarceration may, at any time during the term of such incarceration, file a petition with the sentencing court requesting the DNA testing of any evidence that is in the possession or control of the Division of Criminal Justice, any law enforcement agency, any laboratory or the Superior Court." Subsection (b) of the statute provides that "the court shall order DNA testing if it finds that: (1) a reasonable probability exists that the petitioner would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing; (2) the evidence is still in existence and is capable of being subjected to DNA testing; (3) the evidence, or a specific portion of the evidence identified by the petitioner, was never previously subjected to DNA testing, or the testing requested by the petitioner may resolve an issue that was never previously resolved by previous testing; and (4) the petition before the Superior Court was filed in order to demonstrate the petitioner’s innocence and not to delay the administration of justice."
The defendant’s request that the victim’s thong underwear be tested fails for two reasons. First, § 54-102kk(a) requires that the petitioner state under penalties of perjury that the evidence sought to be tested contains biological evidence. Putting aside the fact that the defendant failed to provide such a sworn statement, the defendant has provided no basis to believe that the victim’s underwear contains biological evidence. To gain further DNA testing, the defendant must make a preliminary showing supported by a reasonable basis in fact that the evidence sought to be tested likely contains biological material. State v. Solman, 131 Conn.App. 846, 856 (2011). The defendant asserted at oral argument that his basis for believing that the underwear contains biological material was the possible presence of touch DNA on the underwear. The mere possibility of touch DNA on an item is insufficient to meet the mandate of § 54-102kk(a) as the statute requires reasonable probabilities, not surmise or conjecture. Id., 857.
Moreover, assuming that biological evidence exists on the victim’s underwear, the most that the defendant can hope for is that DNA testing would show the absence of his DNA and the presence of the DNA of another male. Those results would not lead to a finding that a reasonable probability exists that the defendant would not have been convicted in light of the weighty evidence of his guilt presented at trial.
"A reasonable probability under § 54-102kk(b)(1) means a probability sufficient to undermine confidence in the outcome." (Quotation marks omitted.) State v. Dupigney, 295 Conn. 50, 64 (2010). The issue is whether the unavailability of the exculpatory evidence was so unfair as to undermine confidence in the jury’s verdict. State v. Marra, 295 Conn. 74, 88 (2010). Viewed in the context of the totality of evidence admitted at the defendant’s trial, the limited exculpatory value of the new DNA evidence falls far short of undermining one’s confidence in the defendant’s guilt.
In September 2005, the victim, LB, moved into an apartment adjoining the defendant’s apartment in a residential complex. Upon moving into her new apartment, LB first encountered the defendant, and, approximately one month later, LB also met the defendant’s girlfriend, Beverly Martin. On the night of November 18, 2006, the victim LB fell asleep on her living room couch. At approximately 4:26 a.m., with her apartment completely dark, LB awoke to what she believed was a gun pressed against her head. LB heard the voices of a male and female in her apartment. LB recognized the voices as that of the defendant and Beverly Martin. The person holding the gun to her head ordered LB to put her hands behind her back. Her arms were duct taped behind her and a piece of duct tape was placed over her mouth. LB’s pants were partially removed and she was wearing thong underwear. The man and woman took turns inserting a dildo into LB’s vagina and rectum while holding the gun to her head. When they were finished, the man inserted his penis into LB’s vagina.
Later that day, after the assault, LB went to the emergency room at Waterbury Hospital and was treated by an emergency room nurse. The nurse noted the following injuries: a lump in the back of LB’s head caused by blunt force trauma, red markings and tenderness to her neck, red marks and tenderness on her right wrist, a tender labia, a fissure on the outer portion of LB’s rectum and a very tender posterior fourchette. The nurse also took swabs from LB’s vagina, mouth, and rectum.
The day of the assault, the defendant’s apartment was searched by the police. They recovered a flesh-colored dildo, a black dildo, two BB guns and a roll of duct tape. Maria Warner, a forensic science examiner from the state lab, compared the pieces of duct tape found at the scene of the crime with the duct tape found in the defendant’s apartment. She concluded that the duct tapes shared similar characteristics. Specifically, the tapes’ three layers, chemical composition and processing marks were similar.
Melanie Russell, another forensic science examiner from the state lab, examined the flesh-colored dildo located in the defendant’s apartment and concluded that LB’s DNA profile was present in the DNA profile found on the dildo. Russell further concluded that the male DNA found on the same dildo was consistent with the defendant or another member of the same paternal lineage being the source of the DNA. The expected frequency of individuals who could be the source of the DNA profile was approximately 1 in 118 in the African-American male population. Russell also testified that the DNA profile from the sperm rich vaginal swab of LB was consistent with the defendant or another member of the same paternal lineage being the source of the DNA. The expected frequency of individuals who could be the source of the DNA profile is approximately 1 in 71 in the African-American male population.
Any exculpatory evidence obtained from DNA testing of the victim’s underwear is insufficient to overcome the wealth of evidence establishing the defendant’s guilt. LB was familiar with the defendant and identified him and his girlfriend through their voices. Duct tape with similar characteristics to that used to bind LB was found in the defendant’s apartment along with two guns. A flesh-colored dildo was located in the defendant’s apartment which had on it the victim’s DNA as well as male DNA consistent with that of the defendant. Finally, the DNA profile from sperm found in LB’s vagina was determined to be consistent with the defendant being the source of the DNA. The possibility that the defendant’s DNA was not on the victim’s underwear and that another male’s DNA was located there does not mean that the defendant did not sexually assault LB on November 18, 2006 and fails to undermine confidence in the jury’s verdict.
In his motion, the defendant has also requested mitochondrial DNA testing of the buccal swabs taken of the victim’s vagina, mouth and rectum arguing that such tests have a higher rate of accuracy than the DNA tests admitted at trial. The fundamental problem with this request is that the defendant has failed to provide any expert testimony that mitochondrial DNA testing is in fact a more accurate method or that such testing will "resolve an issue that was never previously resolved by the previous testing." See § 54-102kk(b)(3). Similarly, while the defendant asserts that the DNA testing method used in connection with his trial was unreliable, he has provided no evidence to support such a claim.
Finally, the defendant contends in his motion that his buccal swab may have been contaminated because it "was unaccounted for" during several days. Again, the defendant has presented no evidence that the buccal swab was actually unaccounted for or that its loss compromised the swab’s integrity. Also, the defendant raised a claim of an improper chain of custody regarding the DNA evidence in a previous habeas petition which was dismissed by the trial court due to a lack of evidence. Buie v. Warden, 2012 WL 7831271 (Conn.Super.Ct.) (September 28, 2012) (Cobb, J.) The Connecticut Appellate Court dismissed the appeal per curiam. Buie v. Commissioner of Correction, 151 Conn.App. 901 (2014), and the Connecticut Supreme Court denied the petition for certification to appeal. Buie v. Commissioner of Correction, 314 Conn. 910 (2014).
For the foregoing reasons, the defendant’s motion for post-conviction DNA testing is hereby denied.